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Property II
University of Nebraska School of Law
Medill, Colleen E.

MARITAL PROPERTY[Jan. 10, 310-319; Jan 11 321-335] Tenancy by the Entirety [§638] · English common law: A conveyance to H and W “as joint tenants” or “as tenants in common” created a tenancy by the entirety in H and W. This old rule has been abolished in all states. Modern law permits H and W to take as tenants in common or as joint tenants.
· Modern Presumption of Tenancy by the Entirety for conveyances to H and W: Where the conveyance is unclear, most states that retain the tenancy by the entirety presume that conveyance to a H and W creates a tenancy by the entirety. This presumption can be rebutted by evidence that some other estate was intended.


For questions on Tenancy by the Entirety, look carefully for the state: NE doesn’t recognize TbE. It is treated as JT.

Conveyance to unmarried persons: If a conveyance is made to two unmarried persons to hold as tenants by the entirety, it does not create a tenancy by the entirety.

o Majority View: An attempt to convey a Tenancy by the Entirety to non-married people creates a tenancy in common.
o Some courts hold such a conveyance creates a joint tenancy, on the theory that a joint tenancy is closer to the grantor’s intent than a tenancy in common.
· Right of Survivorship: The Tenancy by the Entirety carries the right of Survivorship, just like a Joint Tenancy.
· NE does not recognize the Tenancy by the Entirety: In Nebraska, what otherwise would be treated as a Tenancy by the Entirety is treated as Joint Tenancy property.

Common Law Marital Property System
· Wife ceased to be a legal person for the duration of the marriage: Upon marriage, a woman was under her husband’s protection. Husband and wife were regarded as one, and that one was the husband.
· Husband’s right to possession: Except for clothes and ornaments (known as the wife’s paraphernalia) all personal property owned by the wife at the time of the marriage or acquired thereafter, including her earnings, became the property of the husband. The husband had the right of possession to all the wife’s land during marriage. That right was alienable by the husband, and reachable by his creditors.

Married Women’s Property Acts
· Overview: Married Women’s Property Acts were first enacted in Mississippi in 1839. Throughout the 19th century, each American state enacted a MWPA. These acts removed the inability of married at common law to control and dispose of their property. Consequently, a married woman was able to receive, hold, manage, and dispose of real and personal property as if she were a single woman. (A single woman was under no disability at common law and could do with her property anything a man could.)
· Why Enacted? Under English common law all of the wife’s common law rights were merged into her husband’s rights. This frustrated womens’ rights groups because women, regardless if they brought substantial property into the marriage, could never own their own property and their husband’s creditors had access to land which originally belonged to the wife.
· 1st Reason for MWPA: Protect wife’s land from husband’s creditors.
· 2nd Reason for MWPA: Give wife legal autonomy, allowing a wife to own her own land.
· Realistic outcome of MWPA: Although the wife was given control over her pro

at common law—thus reachable by creditors: Some courts hold that the MWPA had the purpose of giving the same rights as the husband had at common law. Thus, with respect to the Tenancy by the Entirety, the wife acquires the right to possession of ½ and the right to convey her interest in the same manner as the husband could at common law. Neither spouse can destroy the right of survivorship of the other. Thus, because each spouse can voluntarily convey his or her interest, a creditor of the H can seize and sell his interest, and a creditor of the W can seize and sell her interest. (This view is taken in NY and NJ, among other states).
o EX: H and W own Blackacre as Tenants by the Entirety. W’s judgment creditor, A, levies execution on W’s interest, which is sold to B on execution sale. B is entitled equally to possession with H until H or W dies. If H dies first, then B alone owns Blackacre. If W dies first, then H alone owns Blackacre.
§ Remember: A tenancy by the entirety carries a right of survivorship, which operates in the same manner as the right of survivorship in a joint tenancy.
Partition of family homes is NOT available: A purchaser from H or W, including a purchaser at an exeucution sale, is a tenant in common with the other spouse during the lives of he spouses, but if the property is a family home, partition is NOT